The quirky case of Mostyn J and the using magical sparkle powers to place a child in quasi secure accommodation under inherent jurisidiction (child met test for secure but no secure beds) but wait, the child is consenting to their detention, has come up for appeal
Original blog here (and yes, I super simplified the issues in that quick summary)
The appeal is here
Re T (A Child) 2018
In the Mostyn J case, the Judge decided that whilst a valid and enduring consent could block the Court’s use of the inherent jurisdiction (and perhaps s25 Secure Accommodation), what he was presented with was not in fact a genuine and enduring consent. The young person had capacity to agree to their detention, but the Judge thought that is was not a consent given with the intent of honouring it (which may be supported by the evidence of said young person escaping from the secure unit shortly afterwards)
The Court of Appeal decided that Mostyn J was wrong, though not for the reason the appeal was brought. The appeal was saying ‘don’t add that ‘enduring’ component to consent’ and the Court of Appeal said that in a secure accommodation or quasi-secure accommodation setting, lack of consent of young person wasn’t required and thus their giving consent did not prevent a Judge making the order or using the inherent jurisdiction.
In effect, Mostyn J had been persuaded that consent was more significant than it in fact was, and it wasn’t necessary to add the gloss that he applied to reach the right outcome.
The technical bits follow in bold, skip if you like – there’s better stuff after that of a wider interest
Discussion: Is a lack of valid consent a pre-requisite to the exercise of the inherent jurisdiction authorising restriction of the liberty of a young person?
- Although the point is now conceded for the purposes of this appeal, it is helpful to record brief reasons why the Appellant’s concession on the question of whether a lack of valid consent is a pre-requisite to the exercise of the inherent jurisdiction to restrict liberty was correctly made.
- On the basis of the ECtHR and domestic case law, and on the basis of the statutory scheme for secure accommodation in CA 1989, s 25 and SSW(W)A 2014, s 119, it is clear that, whilst a lack of valid consent may be an element in determining whether a person is deprived of their liberty in any given circumstances for the purposes of Art 5, lack of consent is not a jurisdictional requirement either for making a statutory secure accommodation order or for the High Court to exercise its inherent jurisdiction to authorise a local authority to restrict a young person’s liberty. That conclusion is established on the following four bases:
a) The consent, or otherwise, of the young person is not a relevant factor in the statutory scheme;
b) There is no domestic authority to the effect that it is necessary to find an absence of valid consent before the court may authorise a local authority to restrict the liberty of a young person;
c) To hold otherwise would be to confuse the distinct temporal perspectives of Art 5 and an application for authorisation;
d) It would also mistake the purpose of an order under the inherent jurisdiction authorising the placement of a child in the equivalent of secure accommodation.
(a) The statutory scheme does not require lack of consent
- The consent, or lack of it, of the young person who is the subject of a secure accommodation application is not a factor to which reference is made in any part of the statutory scheme under CA 1989, s 25 or SWW(W)A 2014, s 119. The statutory scheme has been held to be compatible with, and not in breach of, ECHR Art 5.
- The fact that ‘consent’ is not a factor in the statutory scheme, in contrast to the requirements of Art 5 when determining whether there has been a deprivation of liberty as established by the second element of Storck, points up the essential difference between the two processes. Section 25 and s 119 are concerned with the authorisation of the placement of a child in secure accommodation: “… a child … may not be placed … in accommodation … for the purpose of restricting liberty (“secure accommodation”) unless …”. By s 25(2) and s 119(2) regulations may ’empower the court from time to time to authorise a child to be kept in secure accommodation’ for such period as the regulations may specify. Where the statutory criteria in s 25(1) or s 119(1) are satisfied the court ‘shall’ or ‘must’ ‘make an order authorising the child to be kept in secure accommodation’ (s 25(3) and s 119(3)) – see Re M (Secure Accommodation).
- The effect of a court order under s 25 or s 119 is, therefore, to ‘authorise’ the applicant local authority to keep the subject child in secure accommodation. The effect of authorisation under s 25 is most clearly demonstrated by s 25(5A) which spells out the effect of a secure accommodation order for a placement in Scotland:
(5A) Where a local authority in England or Wales are authorised under this section to keep a child in secure accommodation in Scotland, the person in charge of the accommodation may restrict the child’s liberty to the extent that the person considers appropriate, having regard to the terms of any order made by a court under this section. [emphasis added]
- In contrast to a sentence of imprisonment passed by a criminal court, a local authority is not required to restrict the liberty of a young person who is the subject to a secure accommodation order; s 25 and s 119 do no more than establish a system for the authorisation of such placements. The statutory scheme is therefore focused upon whether or not the factual circumstances are such as to be sufficiently serious to justify restricting liberty.
- The welfare of the child, whilst relevant, is not the paramount consideration for a court when determining an application for a s 25 or s 119 order (Re M (Secure Accommodation Order)  1 FLR 418). The judgment of Butler-Sloss LJ (as she then was) in Re M justifies reading in full, but the reasons supporting her conclusion, with which Hoffmann LJ and Sir Tasker Watkins agreed, included the following:
a) Section 25 sits within Part 3 of CA 1989 which is structured to cast upon the local authority duties and responsibilities for children in its area, including those who are being looked after.
b) The general duty of a local authority under Part 3, which is to safeguard and promote the child’s welfare, is not the same as the duty of a court under CA 1989, s 1 to afford paramount consideration to the child’s welfare.
(b) No domestic authority requires there to be a lack of valid consent
- Save possibly for the decision of Keehan J in Local Authority v D to which I will now turn, and, of course, Mostyn J’s decision in the present case, this court has not been taken to any authority for the proposition that a lack of valid consent is a necessary jurisdictional pre-requisite before the High Court may exercise its inherent jurisdiction to authorise restriction of liberty. The role of the High Court, in holding as closely as possible to the scheme of s 25 and s 119 in these cases, is that of determining whether a local authority is to be authorised to restrict liberty.
- This court was told that, in the present case, since the making of the order in March, the regime at the second placement has been relaxed so that the appellant now spends over three hours each day of ‘free time’ with the expectation that the amount of free time will increase by 30 minutes each week. The relaxation of the regime was a matter within the discretion of the local authority under the structure of the order made by Mostyn J who, rather than requiring restraint, had simply sanctioned its use.
- In like manner to the effect of a secure accommodation order, an order under the inherent jurisdiction in these cases does not itself deprive a young person of his or her liberty, it merely authorises the local authority (or those acting on their behalf) to do so. This distinction was, unfortunately, not made sufficiently clear by Keehan J in Local Authority v D when he summarised the issue before the court (at paragraph 9) in terms of determining whether or not C was deprived of his liberty. With respect, the issue in such cases is, rather, whether the court should give a local authority the authority to deprive a young person of their liberty should they consider that that is necessary. In the event, Keehan J’s determination turned on the different basis that, because of the agreement of the young person it was not necessary for the court to give such authority to the local authority at that time.
(c) The different perspectives of Article 5 and an application for authorisation
- This further consideration also points to the same overall conclusion. A determination that a person has or has not been deprived of their liberty in breach of Art 5 will often be a retrospective evaluation of the individual’s current and past circumstances. In that regard the question of whether or not they have or had consented to the restrictive regime is likely to be an important element; one cannot normally be said to be deprived of liberty when one has freely agreed to the relevant regime. This is in contrast to the court’s role under s 25 and s 119 or under the inherent jurisdiction, where the court’s perspective is normally prospective, determining whether circumstances exist that justify a local authority placing a child or young person in accommodation for the purpose of restricting their liberty.
(d) The purpose of an order under the inherent jurisdiction authorising the placement of a child in the equivalent of secure accommodation.
- The need for an order authorising a local authority to place a child in the equivalent of secure accommodation derives from two factors. The first, and fundamental aspect, is to ensure that the absence of available secure accommodation does not lead to the structure imposed by s 25 being avoided. The terms of s 25 should be treated as applying to the same effect when a local authority is placing a child or proposing to place a child in the equivalent of secure accommodation. When viewed from this perspective, it is clear that a local authority cannot invest itself with the requisite authority and that a child’s agreement or consent cannot authorise such a placement. Neither the local authority nor a child/young person can authorise what Parliament has decided only the court can authorise.
- The second factor derives from Article 5. The court’s authorisation means that if the authorisation is used for the purposes of depriving a child of their liberty the legal requirements of Article 5 will also have been fulfilled: see Re K (Secure Accommodation Order: Right to Liberty)  1 FLR 526. The court will necessarily have determined that the child’s welfare justifies, or even requires, him/her being deprived of their liberty for the purposes of maintaining the placement in the secure accommodation.
- Drawing these matters together, once it is seen that the court’s power under s 25 / s 119 is not dependent upon any question of consent, the difficulties that arose in this case, as it was presented to the judge and, initially, to this court, disappear. The fact that any consent may or may not be ‘valid’ or ‘enduring’ on the day the order is sought, or at any subsequent point, or that a ‘valid’ consent is later withdrawn, is irrelevant to the scope of the court’s powers, whether they are exercised under statute or under the inherent jurisdiction of the High Court. The existence or absence of consent may be relevant to whether the circumstances will or will not amount to a deprivation of liberty under Art 5. But that assessment is independent of the decision that the court must make when faced with an application for an order authorising placement in secure accommodation, registered or otherwise.
- This approach, where the question of whether or not an Art 5 deprivation of liberty occurs depends upon the facts on the ground at a particular time and is not necessarily required by, or created by, the court order but by the act of those caring for the child under the court’s authorisation, accords with the ECtHR jurisprudence summarised at paragraph 23 and onwards above.
Further, the need for there to be an absence of valid consent before the Storck criteria are established, does not mean that the presence of an apparently valid consent prevents the circumstances from amounting to a deprivation of liberty (see De Wilde, Ooms and Versyp, Storck para 75 and Buzadji). In terms of domestic authority, paragraphs 23 to 31 of MM and PJ could not be more clear – “where conditions amounting to a deprivation of liberty are compulsorily imposed by law, the agreement of an individual cannot prevent that compulsory confinement from constituting a deprivation of liberty”. In like manner, it is to be recalled that the court in De Wilde stated:
“Finally and above all, the right to liberty is too important in a “democratic society” within the meaning of the Convention for a person to lose the benefit of the protection of the Convention for the single reason that he gives himself up to be taken into detention. Detention might violate Article 5 even although the person concerned might have agreed to it” [emphasis added].
- It inevitably follows from the above analysis, and from the Appellant’s concession, that Mostyn J’s initial misgivings were well-placed but that he was unfortunately drawn into a legally erroneous position by accepting that it was necessary for the court to find a lack of valid consent before it could grant the local authority’s application. In the circumstances any question of the judge being correct in adding the gloss of ‘enduring’ to this non-existent jurisdictional requirement falls away.
- I should make clear that this case does not concern the placement of children in other than the equivalent of secure accommodation. Different considerations will apply when an application is directed towards, and only directed towards, a deprivation of liberty. In that situation, subject to De Wilde, the question of whether or not the subject of an application to authorise the deprivation of liberty of a young person under the inherent jurisdiction is in agreement with the proposed regime may form part of an evaluation of whether such authorisation is necessary. Local Authority v D is an example of a case where the judge concluded that the young person’s stance rendered a court order unnecessary.
- Conversely, as referred to above, once the court has authorised placement in secure accommodation or its equivalent, it may properly be considered that the matter can be left to those who are authorised to operate the care regime on a day to day basis and, as in the present case, they may work with the young person in a flexible manner using their powers of restriction or deprivation when necessary, but relaxing them when it is safe and appropriate to do so. Such issues are fact-specific to each case and are not matters of jurisdiction.
- The Appellant’s appeal, as it had become by the close of argument, is now no more than a challenge to the judge’s discretion and could only succeed if this court were to be satisfied that the judge was wrong to grant authorisation to the local authority notwithstanding the apparent consent of the young person. There is no basis for holding that Mostyn J was ‘wrong’ to authorise restriction of liberty in this case. Indeed, as the judge himself observed, the breakdown of the placement so soon after the January order had been made vindicated his determination on that occasion; it also justified the making of a further order in respect of the new placement.
The Court of Appeal also made broader comments about the chronic and acute lack of beds for children who present with these difficulties, and the inherent unsuitability of using the inherent jurisdiction as a sticking plaster for the lack of bed space.
- This appeal relates to the exercise of the inherent jurisdiction by the High Court, Family Division when called upon to make orders which, but for a lack of capacity in the statutory system, would be made as secure accommodation orders under Children Act, 1989, s 25 (CA 1989).
- Official figures published by the Department for Education show that, as at 31 March 2018, there were some 255 places in secure children’s homes in England and Wales. These places are taken up either by young people sent there through the criminal justice system or under CA 1989, s 25 secure accommodation orders. As will be explained more fully below, a child who is being looked after by a local authority in England or Wales may only be placed in secure accommodation in a children’s home if that home has been approved for such use either by the Secretary of State in England or the Welsh Government in Wales. This court understands that, in recent years, there has been a growing disparity between the number of approved secure children’s homes and the greater number of young people who require secure accommodation. As the statutory scheme permits of no exceptions in this regard, where an appropriate secure placement is on offer in a unit which is either not a children’s home, or is a children’s home that has not been approved for secure accommodation, the relevant local authority has sought approval by an application under the inherent jurisdiction asking for the court’s permission to restrict the liberty of the young person concerned under the terms of the regime of the particular unit on offer.
- Despite the best efforts of CAFCASS Cymru (this being a case concerning a Welsh young person), it has not been possible to obtain firm data as to the apparent disparity between the demand for secure accommodation places and the limited number available, nor of the number of applications under the inherent jurisdiction in England and Wales to restrict the liberty of a young person outside the statutory scheme. The data published by the Department for Education referred to in paragraph 2 simply measures the occupancy rate within the limited number of approved secure places without attempting to record the level of demand.
- This court has been told by counsel, on a broad anecdotal basis, that each local authority may, on average, make an application for a restricted liberty declaration under the inherent jurisdiction in one case each year. If that is so then, across England and Wales, the total number of such applications would be in the region of 150 per year. The understanding, again anecdotal, of judges hearing these cases is that that figure is probably a very substantial under-estimate; for example, in one week recently a medium-size court outside London heard five such applications. Again, by way of example, Mr Justice Holman described the situation in one week in the High Court in 2017 with a tone of wholly appropriate concern in A Local Authority v AT and FE  EWHC 2458 (Fam):
- “5. It appears that currently such authorisation can only be given by the High Court in exercise of its inherent jurisdiction. This week I have been sitting here at the Royal Courts of Justice as the applications judge. This case is about the sixth case this week in which I have been asked to exercise the inherent jurisdiction of the High Court to authorise the deprivation of liberty of a child in similar circumstances. There are two yet further similar cases listed before me today.
6. Quite frankly, the High Court sitting here at the Royal Courts of Justice is not an appropriate resource for orders of this kind, and I personally have been almost drowned out by these applications this week. Further, although I have no time properly to consider this today, I am increasingly concerned that the device of resort to the inherent jurisdiction of the High Court is operating to by-pass the important safeguard under the regulations of approval by the Secretary of State of establishments used as secure accommodation. There is a grave risk that the safeguard of approval by the Secretary of State is being denied to some of the most damaged and vulnerable children. This is a situation which cannot go on, and I intend to draw it to the attention of the President of the Family Division.”
- It is plainly a matter for concern that so many applications are being made to place children in secure accommodation outside the statutory scheme laid down by Parliament. The concern is not so much because of the pressure that this places on the court system, or the fact that local authorities have to engage in a more costly court process; the concern is that young people are being placed in units which, by definition, have not been approved as secure placements by the Secretary of State when that approval has been stipulated as a pre-condition by Parliament
The need for precision about the sort of restrictions that a children’s home can place on children and the need for training, inspection and monitoring of homes that are authorised to do so sprang out of the Pindown scandal, and the ingredients are in place for us to slide back into those sorts of dreadful abuses that began with good intentions but got so far removed from how the State ought to be dealing with its most vulnerable children. I hugely applaud the Court of Appeal here – the lack of secure beds is an accident waiting to happen.
The wider issues and the need for scrutiny
- Before concluding this judgment, I return to the concern (referred to in paragraph 5) that so many young people are now being placed in secure accommodation outside the statutory scheme laid down by Parliament in units which, by definition, have not been approved by the Secretary of State as secure children’s homes. Whilst the High Court has a duty to consider such cases and must come to a decision taking account of the welfare needs of the individual young person, in the wider context the situation is fundamentally unsatisfactory. In contrast to the Secretary of State, the court is not able to conduct an inspection of the accommodation and must simply rely upon what is said about any particular unit in the evidence presented to it. In like manner, where a local authority, as is typically the case, is looking to place a young person in a bespoke unit a great distance away from their home area, the local social workers must make decisions at arm’s length and, it must be assumed, often without first-hand detailed knowledge of the particular unit.
- The wide-ranging and powerful submissions of the ALC raise issues which are beyond the compass of this appeal but nevertheless deserve consideration in other places. The ALC identifies the following four key questions arising from the fact that a parallel system now exists under the inherent jurisdiction with respect to the secure accommodation of young people who would otherwise fall within the statutory code:
i) What is the impact, if any, on children of there being in use two parallel processes?
ii) Is there a disparity in the adherence to due process obligations or in the safeguarding a child’s access and participation in court decisions between these two processes?
iii) Is there a disparity in the practical protection afforded to children through the two processes which may result in arbitrary unfairness?
iv) What are the effects on the Convention Rights of children and the protection of their Article 5 and 6 rights of having two processes and in particular when does the ECHR case of Storck apply?
- In the circumstances, a direction will be made that a copy of the judgments in this case is sent to each of the following: the Secretary of State for Education, the Secretary of State for Justice, the Chair of the Education Select Committee, the Chair of the Justice Select Committee, the Welsh Government and the Commissioner for Children.
Having ended the blog proper, two bits of shameless self-promotion (I say shameless, but I’m scarlet and writhing with shame as I type, honestly)
- I am on the shortlist for Legal Commenter of the year at the Family Law Awards. I’ve won this before, so I didn’t want to campaign for it, feeling that the goodness should be shared. But it was amazing to be nominated, and the words said were very kind. My readers should vote, if they can spare a minute, and if you want to vote for me that’s very sweet (but don’t feel obligated to do so) . Voting ends on Friday 19th October, so there’s time if you want to. https://www.familylawawards.com/ehome/familylawawards2018/vote
- As this blog is about Secure Accommodation, a plug for my book In Secure, which is fiction and set in a secure accommodation unit with ten children – there’s magic, adventure, romance, shocks and scares. It’s Tracy Beaker with Tentacles basically. If you haven’t read it yet, I’d love you to read it. You can get a e-book for 99p and the gorgeous paperback for eleven quid. If you have read it, please put a review on Amazon, it makes a huge difference. https://www.amazon.co.uk/Secure-Andrew-Pack/dp/1911586947/ref=tmm_pap_swatch_0?_encoding=UTF8&qid=1539007741&sr=8-2